Fitzsimmons, DeWine want rape case proceedings closed

January 23, 2013

STEUBENVILLE - Ohio Attorney General Mike DeWine is joining attorneys for the two defendants in the Steubenville rape case and also the alleged victim's attorney in calling for the case to be closed to the public.

Attorney Robert Fitzsimmons of Wheeling, who represents the victim, filed a motion Tuesday in Jefferson County Juvenile Court asking that he and the victim's parents be allowed to be present at the trial for the two juveniles but that the public and media be barred.

Two 16-year-old males have been charged with allegedly raping the victim Aug. 11-12. One also faces a charge of illegal use of a minor in nudity-oriented material for allegedly having a picture of the victim in an outgoing text message on his cell phone. Attorneys for both defendants have denied the charges in court.

Fitzsimmons will join attorney Walter Madison, who represents one of the accused, in a hearing at 1 p.m. Friday in the Jefferson County Justice Center concerning motions filed in the case, including the closure of proceedings. Attorneys representing news organizations are expected to argue that the trial be open to the media.

Madison also has requested the trial be held elsewhere and that the trial, which is scheduled to start Feb. 13, be continued. Attorney Brian Duncan, who represents the other defendant, also has filed a motion for continuance.

Visiting Judge Thomas Lipps earlier this week overruled a motion by Madison requesting that the two boys have separate trials. Lipps will make the determination of guilt or innocence after the trial and there will be no jury.

Fitzsimmons, in his motion to close further proceedings, said the hearings will involve "highly sensitive and personal matters" for his 16-year-old client, whom he refers to only as "Jane Doe" in the motion. He claims the media and the public will hear inadmissible evidence during the hearings.

"Jane Doe has, to the extent possible, kept her anonymity throughout these proceedings and rightly so as a 16-year-old victim. Closure will help preserve that anonymity and more importantly keep inadmissible evidence from being published by the public in whatever fashion they elect," he said in his motion.

"Jane Doe acknowledges the press' right, guaranteed by the First Amendment of the United States Constitution, to cover newsworthy events. However, this right is not boundless. This court is already aware of the massive media and public attention generated by these cases and closure is the only alternative that can protect Jane Doe from improper use of inadmissible evidence that is either proffered, tendered or argued in open court."

Fitzsimmons said his 16-year -old client is not requesting to be present throughout the proceedings, only her parents.

DeWine said he's met with the girl and she's "doing OK."

"We're dealing with a 16-year-old victim," DeWine said. "It's difficult enough for her to testify without testifying in front of the whole world."

DeWine said Wednesday the girl will testify whether the trial is closed or not.

"I just think it's the right thing to do under all the circumstances for it to be closed for her," DeWine said of closing the trial.

Madison, in his motion to close the hearings and trial to the public and media, said many people who have posted items on the Internet believe his client and the co-defendant, other members of the high school football team and certain members of the public are guilty of the alleged crime.

He said the group Anonymous has threatened to release sensitive, personal information about those individuals it believes are helping "cover up" this alleged crime.

"It has posted YouTube videos stating that unless those involved in the alleged crime and those who it believes are protecting the juveniles in this case apologize, certain actions will be taken against them," Madison said.

"In addition, it has released statements that if it believes an individual does help the juveniles in this case, it will release their private information to the world. Anonymous has staged protests in Steubenville, raising tensions and emotions of the local community."

Anonymous held rallies on the steps of the Jefferson County Courthouse on Dec. 29 and Jan. 5. A Stand Up for Steubenville rally was held Jan. 12 at Jim Wood Park.

Madison claims the retaliation threats have created an atmosphere of intimidation, and witnesses that could be beneficial to the defense are unwilling to come forward with information.

"If material witnesses are reluctant to testify, this will jeopardize (my client's) constitutional right to present a defense. This is a reasonable and substantial basis to believe that public access would endanger the fairness of the adjudication," Madison said.

"While this is a very serious offense being alleged, the harm of (my client) not receiving a fair trial outweighs any right the media and public have in viewing this trial."

Madison said due to the threats made by Anonymous, and the polarizing of the community into divergent groups, there is no alternative to having the proceedings closed to the public.

DeWine said he's not concerned about social media or Internet influence because the trial is being held before a judge.